A commentary on rabbinic texts and toxicality

November 23, 2005

Tenafly NJ was home to a big communal and legal brouhaha over a proposed eruv. The eruv was proposed on June 1, 1999 and, once installation of the ritual boundary was underway in fall 2000, the eruv was opposed by the Borough of Tenafly. The lawsuit wound its way through U.S. federal courts, the eruv supporters won in the U.S. Court of Appeals (pdf file), and a final appeal was denied by the Supreme Court. Is it discriminatory for a government to deny Jews the opportunity to set up a ritual eruv? Does it violate the Establishment Clause for a municipality to authorize and assist an eruv?

At the Jewish Law website, you can read amicus curiae briefs by the Orthodox Union (joined by ADL, RCA, AJC, Hadassah, Reform Judaism) and Agudath Israel. The site also mentions two previous cases: Smith v. Community Bd. No. 14, 491 NYS2d 584, 128 Misc2d 944 (S.Ct. Queens County, 1985) and ACLU of New Jersey v. City of Long Branch, 670 F. Supp 1293 (D.N.J. 1987). Background on Tenafly for the media, with many good links. An atheist's brief recap and comment on the Tenafly case.

SUMMARY (courtesy of Lexis): ... This comment uses the creation of an eruv, the name of this procedure, as a case-study to display the ambiguities of current First Amendment law and the need for more specific guidance from the Supreme Court on what the Establishment Clause permits and forbids and what the Free Exercise Clause requires. ... An eruv should also pass Establishment Clause scrutiny even if it is considered speech, and no other groups are permitted access to the forum since it passes the Lemon and endorsement tests even if there is no additional purpose of complying with the Free Speech Clause. ... If a restriction on an eruv fails the reasonableness test that would most likely be applied if a wide variety of groups are denied access and restrictions on other forms of speech do not, permitting an eruv is not "preferential," but neutral. ... Since an eruv would almost always be less obtrusive than any other request, a city cannot permit other groups to have access, and deny access to eruv seekers on the grounds that its ordinance is narrowly tailored to the compelling interest of avoiding visual clutter and maintaining control over city property. ... " In Lukumi, the Court noted that the Free Exercise Clause protects against governmental hostility which is "masked as well as overt. ...

The general applicability test puts center stage the existence of secular exceptions (and thus the existence of secular burdens) in determining whether a religious claimant should get an exception. ... Other cases, such as Tenafly Eruv Association, Inc. v. Borough of Tenafly n90 and Rader v. Johnston, n91 also expose the role that demographic factors can play in exemption analysis. In the Tenafly case, a group of Orthodox Jewish residents sought permission to attach lechis, which are thin black strips of plastic, along neighborhood utility poles. In doing so, the residents were attempting to create an eruv, a ceremonial demarcation of a particular area. Creating an eruv allows Orthodox Jews, who are usually forbidden from pushing or carrying objects outside their homes on the Sabbath, to conceive of the entire space within the eruv as their home. Without an eruv, Orthodox Jews who have small children or who are disabled cannot attend synagogue on the Sabbath. n92 The Third Circuit granted the residents a preliminary injunction against enforcement of an ordinance forbidding signs on public places because the rule was not enforced in a generally applicable manner. The Third Circuit relied upon the fact that, among other exceptions, the Borough had allowed orange ribbons to remain on utility poles during a controversy over school regionalization and the fact that residents often nailed their address number signs to utility poles. n93 As these exceptions were necessary to the result, the clear implication is, of course, that if the Orthodox Jews had lived in a community where people posted their address numbers over their doors and where the school district was not embroiled in political controversy, the Orthodox Jews living there would have no right to an eruv. n94 (n94 I must confess that this discussion oversimplifies the case in Tenafly. The Borough made several other exceptions to the rule; it permitted local churches to post permanent directional signs, residents to post lost animal signs, and the local Chamber of Commerce to affix holiday displays. Id. at 151-52. My point, however, remains. All of the secular exceptions seem traceable to idiosyncratic factors about the Borough of Tenafly that may not exist in other communities. It seems instinctive to question the sense of an exemption system that makes religious claimants' rights contingent on such factors.)

NOTE: The Utility and Efficacy of the Rluipa: Was It a Waste? (31 B.C. Envtl. Aff. L. Rev. 723) by SARA SMOLIK

The Appeals Court found that the association could not sustain its claim that the ordinance infringed on its free speech rights. n216 The association argued that the lechis that marked the eruv's boundaries were so innocuous that even members of the Tenafly Orthodox community[*751]would not be able to recognize them for what they were; rather, knowledge of the eruv and its boundaries would be passed by word of mouth. n217 Because of this, the court determined that the act of affixing lechis to the utility poles was not "sufficiently imbued with elements of communication to be deemed expressive conduct" worthy of protection under free speech jurisprudence. n218 The court concluded that, in the absence of evidence that such demarcations convey an "attitude or belief," geographical boundary lines, like the eruv or fences and walls, were not expression protected by the First Amendment. n219

In reaching this holding, the Tenafly Eruv court was obviously concerned with the implications of making it easier for plaintiffs bringing free exercise claims to allege an infringement of hybrid rights. n220 The court expressed concern that, by analyzing the construction of an eruv under the Free Speech Clause, it would set a precedent that would easily allow plaintiffs and courts to side-step the essential holding of Smith. n221 "Moreover, if solely the act of erecting a wall separating the interior of a building from the secular world constituted 'speech,' every religious group that wanted to challenge a zoning regulation preventing them from constructing a house of worship could raise a 'hybrid' rights claim triggering strict scrutiny." n222 Commentators have expressed similar concerns that Smith's exemption for hybrid rights threatens to swallow the rule it creates. n223

October 03, 2005

Judges and judgments in the news. Tom DeLay indicted. A new Supreme Court Chief Justice sworn in, effectively ending the chance for a Rehnquist Memorial Amnesty inspired by Biblical law. A Rosh Yeshiva resigns because he violates Jewish law (i.e., the law against homosexual activity).

In Israel, a convicted forger refuses to resign as a judge. She also destroyed court documents. (Am I missing something here?!) Judge Hila Cohen, at least you've got chutzpah. "Your hands are sullied with blood and your fingers with sin" (Isaiah 59), the Talmud (bShab 139a) assigns this verse to corrupt judges and court scribes.

The same Talmud page teaches that it is permissible to teach boorish judges a less sophisticated form of The Law. In other words, if you aren't educated, you are in no position to take advantage of the leniencies of the erudite. So, there is one law for the unlearned, like the "Bashkarians", and a more comprehensive law for Bnei Torah, i.e. scholars of rabbinic law. In jurisprudence, this is the difference between law for the judges and law for the masses. I wonder if it also might shed light on R. Moshe Feinstein's 1981 responsum on smoking, in which he argues that smoking is permissible because "The Lord preserves the simple" (shomer peta'im HaShem) but that Bnei Torah shouldn't get addicted or let their children smoke.

Finally, judgment will come for the Red Sox. Saved by the last game of the season, the Red Sox face the White Sox. Repent all ye sinners in Red Sox Nation, else we will be wearing white -- the pure color of the High Holy-Days -- this week.

Joined at the heart, it's painful to realize that these Israeli twins were doomed from start. Ha'aretz reports that the ultra-Orthodox parents would have used modern diagnostics (cf. my previous post). Furthermore: "A source close to the family said that had the diagnosis of the conjoined twins been presented in time, the parents would have sought rabbinical approval to stop the pregnancy."

It's not the first time that an Orthodox family had Siamese twins who shared a heart.

Philadelphia, 1977. The country's top halakhic authority, R. Moses Feinstein, agreed orally to let C. Everett Koop terminate one (non-viable) of the doomed twins so that the other (viable) twin could live. Here's the story as told by Rabbi Moshe Tendler. R. Feinstein apparently treats the non-viable twin as a rodef, a pursuer, who may be terminated (cp. fetus that threatens a mother's life). I believe that R. Bleich (Tradition 31:1, 1996) and R. Tendler also suggest another rationale, based on classifying the non-viable twin as a treifa, a person who cannot live for long. R. Shabtai Rappoport harmonizes the two approaches. From any standpoint, R. Feinstein's decision is highly controversial because it seems to permit the active termination of a newborn for the sake of another's life.

R. Moshe Feinstein's compassionate and sui generis decision has been used to critique the Catholic position in a similar, more famous Siamese twins case in England. (by Leora Rosen, Gregg Easterbrook)

Sobering case to consider, as we enter the gates of repentence, the gates of judgment, as The Supreme Judge decides who shall live and who shall die.

May you be written and sealed in the book of life, a redemptive Rosh ha-Shanah (Jewish New Year) to all,

Touching and thoughtful post about ultrasound: Does Jewish law permit the use of ultrasound to diagnose the condition of the fetus? ADDeRabbi mentions one Rabbi's view: "His rationale is based on anecdotal evidence of stress caused by misdiagnosis, and some examples of cases where misdiagnosis resulted in unnecessary operations, from which the infant died. He felt that the potential costs far outweighed the potential benefits that may result from such a procedure." Read ADDeRabbi's sound rebuttal here.

"Leading Torah authorities signed the proclamation, including but not limited to Rabbi Ovadia Yosef, Rabbi Yosef Sholom Elyashiv and the Rebbe of Gur." What was the occasion? Approval under Jewish law for "kosher" cellphones. HT to Town Crier.

September 14, 2005

Health care has come up a number of times in the last few weeks of daf yomi Talmudic readings. For instance, at Shab 123a the sages discuss the needle used to remove splinters, the use of emetics, and the (proto-chiropractic?) readjustment of the dislocated limbs of a newborn. There is also a fascinating conversation about about the measures that may be taken, regardless of Sabbath prohibition, to take care of a women before, during and well after labor, e.g. lighting a lamp for a blind woman (128b-129a). (Plus, the halakhah that the umbilical may be not only tied but also cut on shabbat.) Here Mereimar teaches the principle that rabbinic laws "are interpreted leniently for an uncertainty involving life" (safeq nefashot le-heqel).

Having read so much about folkmedicinesin tractate Shabbat, I looked at Jewish Magic and Superstition by Joshua Trachtenberg (1939!), still a fount of information and highly readable. In the long chapter on medicine, he digests supernatural etiologies of disease, bloodletting, psychic treatments, homeopathy, charms, incantations, magic names, use of Torah verses and scrolls, gross potions, misc. healing devices, name change, and herbs. this passage caught my eye:

[Medieval] Northern Europe, walled off from the enlightenment that radiated from the Arab lands, produced not a single Jewish physician of note. Jewish practitioners of medicine there were aplenty, but their science was little more than a faint reflection of the learning of their southern co-religionists. … It is unfair to suggest… that Jewish medical superstition is to be regarded mainly as an imitation of the Christian. … the rationale of superstition and magic in medicine was part and parcel of the Jewish cultural heritage.” (194)

It's hard for some of us to admit the degree of medical and other superstition within Judaism, but that's one kind of knowledge they had available. And it's nice to remember the level of Ashkenaz during the golden age of Sefarad...

September 08, 2005

The Bible teaches us that, after the High Priest dies, there shall be an amnesty for those killers exiled to the six cities of refuge.*

In memory of Supreme Court Chief Justice William H. Rehnquist, would it not be fitting to institute an amnesty or moratorium for those on death row?

Do you think a Chief Justice Rehnquist Memorial Amnesty would appeal not only to opponents of the death penalty, but also to those trying to bring the Ten Commandments and other Judeo-Christian beliefs into our judicial system?

Maybe somebody should design a Chief Justice Rehnquist Memorial Amnesty logo to be placed on supporting blogs and websites? I will list all supporting links here...

* The 6 cities of refuge were to serve, in effect, as ancient prisons for those who had committed manslaughter. See Numbers 35:9-34, High Priest amnesty at v.28. Also Exodus 21:12-14, Deut. 19:1-13, Joshua 20)

September 07, 2005

Christians apparently can claim that their corporations are founded by God. How rare is this?

We are a Christian based business owned and founded by God. In fact, every decision we make, from the name and logo of the business, to the prices we charge, are all guidance from the Lord God Almighty." (source) (Google cache)

For Christians, doesn't such an advertising claim create a moral or theological dilemma?. For instance, how does one haggle over prices or negotiate joint decisions with a businessman who is entirely guided by the Lord? Is it disrespectful to bring customer or supplier complaints to a Christian business with such a lofty back office?

I've never heard of a Jewish business making a comparable claim. Would Jewish law (halakhah) sanction an advertised claim that the business is founded by God? Don't we deserve a leg up on the competition, too?

Kaspit כספית

PS I've been sent a print advertisement with a similar claim -- by a Christian funeral home. Why go anywhere else?

August 27, 2005

Talmudic medicine does not guide Orthodox Jewish doctors today. Doctors glean neither remedies nor bioethics from the Talmudic cures in recent daf yomi (ch 14 Shabbat). So, how does Artscroll annotator R. Yosef Davis explain Talmudic folk medicine? In a note on “The efficacy of Talmudic remedies” (109b2:10), R. Davis begins: “Over the next few pages (109a-111a), a number of remedies for various physical disorders are recorded. Many of these cures, however, are not consistent with the known laws of nature.” Here’s how R. Davis smooths over the Talmud’s conflict with science:

Beyond human reason. “… during the Creation, God invested various herbs, minerals and procedures with the power to effect remedies, some in ways that are comprehended by human reason and some in ways that are beyond our understanding” (Rashba I:413)

Known only to the wisest. Some remedies “are comprehensible only to those who are able to plumb the depths of the Sages’ words [Maharasha]. In particular , many of the various herbs recommended by the Gemara cannot be accurately identified.”

Do not try this at home. “Consequently, one should not attempt these remedies nowadays, since it is unlikely that anyone today will fathom the Talmud’s intentions, and one who finds his application of a remedy ineffective may come to belittle the words of the Sages” (Maharil, R. Akiba Eiger)

Ban on trying. “… one who does rely on Talmudic remedies in our era is punishable by excommunication” (Yam Shel Shlomo) More punishment below.

Changes in nature voids remedies. R. Davis says, “In addition, changes have occurred in the state of nature (nishtanu teva'im) since Talmudic times, and therapies which were efficacious in those times are not necessarily so nowadays.” [1]

Artscroll’s R. Davis is caught in the bind of the less-modern Orthodox. On the one hand, he admits that scientific knowledge rejects Talmudic medicine. He knows that even pious readers will find the remedies implausible. On the other hand, like much rabbinic discourse, he presupposes that one ought not deny outright the literal truth of a Talmudic statement. This may be due to etiquette, respect for elders, faith, epistemological humility, or the mythos of a legal hermeneutics. By stipulating the literal truth of Rabbinic utterances, the collision with science can lead Orthodoxy into controversial doctrines like da’as Torah, mystical pre-modern wisdom, and changes in nature (Hebrew data). Such Orthodox doctrines have been a Jewish blogging topic (see Hirhurim, Jewish Worker), esp. since the ban on R. Slifkin’s books about science and Torah.

Rabbinic clout. Why would a government official die of a snakebite if the (magical) remedy was apparently available? Abaye says that “perhaps he was bit by a Rabbinic (d’rabbanan) snake, for which there is no cure.” (bShab 110a) Artscroll’s R. Yosef Davis uses Abaye’s obscure explanation as a teaching moment. “Abaye surmised that the officer had violated some Rabbinic law…. Although some Biblical transgressions carry the death penalty and some do not, all Rabbinic offenses are punishable by death [at the hand of God] (Eruvin 21b and Rashi). Etc.” [2] In Jewish lore, God’s death penalty is often executed by animals, here via snake bite.
In sum, Talmudic remedies do not conform with modern science. To have faith in the infallibility of Talmudic texts, you can rely on several controversial doctrines. However, Jewish law requires that we use modern doctors. We are forbidden to use Talmudic folk cures. If the cures don’t kill you, a snake bite might do the trick.

[2] All rules in Halakhah may be fundamentally divided into the categories of Biblical i.e. revealed rules (d’oraita) and supporting Rabbinic rules (d’rabbanan). Transgressions of revealed law are punished by fines, flogging, offerings, exile, etc. and the death penalty. Rabbinic rule transgressions carry various earthly penalties, too, but here we learn that all d’rabbanan violations incur divinely-administered capital punishment.